Menai Lands Pty Ltd v Sutherland Shire Council

11469 of 2003 Menai Land Pty Ltd v Sutherland Shire Council

1 COMMISSIONER: This is an appeal against the refusal by Sutherland Shire Council (the council) of a development application (03/0873) to construct an residential care facility at lots 4,5,6 and 7 DP 850738, known as 19-23 Darwin Place and 20 Boyd Place, Barden Ridge (the site). 2 For the reasons set out in this judgment I have concluded that the appeal should be dismissed and development consent refused. The site and its context 3 The site is irregular in shape with an area of 2,363.7sqm. It is located at the end of Darwin Place, with a frontage of about 91.31m to Barden Road and an access handle to Boyd Place. The site is vacant with a number of trees mainly along the north and east boundaries. It has a gentle slope from east to the west. 4 The Bangor Bypass is currently under construction on the opposite side of Barden Road. Adjoining development to the east is a single storey detached house with a frontage to Barden Road and Boyd Place, to the south is a two-storey house with access off Darwin Place and to the west is a two-storey dual occupancy fronting Bode Place. 5 The area is a mixture of one and two-storey houses, two-storey dual occupancy dwellings and two-storey townhouses in landscaped settings. The proposal and its history 6 The application was lodged on 30 May 2003 and was notified to adjoining and nearby residents. Council received a large number of objections to the proposal. Council refused the application on 24 November 2003. A further development application (03/2059) was lodged on 27 November 2003 and notified. Council again received a large number of objections to this application. The applicant lodged an appeal on 2 December 2003 against council's refusal of application (03/0873). The applicant was granted leave for the plans submitted with the second application to be the subject of the appeal. These plans were further amended on 23 April 2004. 7 The proposal is for a 40 bed residential care facility with basement parking for 10 cars access off Barden Road. A secondary driveway entry off Darwin Place is proposed for emergency purposes only. 8 The majority of the building is two-storey over a basement car park. For part of the building the car parking is above ground which results in a three storey building. The maximum height of the roof ridge is eight metres above the existing ground level. The proposal has a floor space ratio (FSR) of 0.88:1 based on council's calculations and 0.75:1 based on the applicant's calculations. The discrepancy in these figures is discussed further in the issues. Planning Framework 9 The site is zoned 2(a1) Residential under Sutherland Shire Local Environmental Plan 2000 (LEP 2000). Housing for older people or people with a disability is permissible with consent. Housing for older people or people with a disability is defined under LEP 2000 to have the same meaning as under State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability (SEPP 5) being:

Housing for older people or people with disabilities means residential accommodation which is or is intended to be used permanently as housing for the accommodation of older people or people with a disability which may consist of a residential care facility, a hostel or a grouping of 2 or more self-contained dwellings, or a combination of these, but does not include a hospital. 10 The proposed development is a residential care facility which is defined under SEPP 5 as being:

Residential care facility means accommodation for older people that includes: (a) meals and cleaning services, and (b) personal care or nursing care, or both, and (c) appropriate staffing, furniture, furnishings and equipment for the provision of that accommodation or care, not being a dwelling, hospital or psychiatric facility. 11 The objectives of the 2(a1) Residential zone are:

(a) where the scale, amenity and general character of the area is preserved, and (b) where the streetscape is characterised by detached one and two-storey residential buildings, and (c) where the predominantly single dwelling house character of the neighbourhood is not diminished by the cumulative impact of successive dual occupancy, townhouse or villa house developments, and (d) where non-residential uses provide necessary services to the local neighbourhood without adversely affecting the residential community. 12 Clause 30 of LEP 2000 requires a consideration of certain matters and that consent must not be granted unless the Court is satisfied that these matters have been adequately addressed. They include:

(a) the impact that the proposed development may have on adjoining development, buildings and open space from loss of sunlight, views and privacy, (b) the effect of the proposed development on the quality of the streetscape, (d) the impact of the proposed development on adjoining properties in terms of size, bulk, height and amount of landscaped area, (e) the retention and enhancement of existing vegetation 13 Clause 32 specifies that:

Consent must not be granted to residential development unless the consent authority is satisfied that the proposed development will not have a significant adverse effect on: (a) the protection of rare and endangered flora and fauna species and the protection of habitats for native flora and fauna, or (d) the protection of bushland vegetation of scenic value and the retention of the unique visual identity of the landscaped. 14 LEP 2000 contains development standards that are relevant to this proposal including cl 34 Height, cl 35 FSR and cl 36 Landscaped area. 15 A Development Control Plan for Housing for Older People or People with a Disability (DCP) was adopted by Council on 30 June 2003. This DCP applies to this type of housing not subject to the provisions of SEPP 5. Council has adopted a separate DCP for SEPP 5 development. A draft DCP, which would replace both these DCPs, was exhibited from 17 August to 14 September 2004. 16 Under Draft Sutherland Local Environmental Plan 2004 (draft LEP) the site is proposed to be zoned Environmental Housing (Bushland). The proposed development would be prohibited in this zone. The draft LEP also proposes a FSR of 0.75:1 for a residential care facility. 17 The application exceeds the height and FSR standards in LEP 2000 and the applicant has submitted applications under State Environmental Planning Policy No 1 - Development Standards (SEPP 1). 18 Council received a partial exemption to the provisions of SEPP 5 and its replacement State Environmental Planning Policy (Seniors Living) 2004 (Seniors Living Policy). The Seniors Living Policy applies to applications made by Department of Housing, a local government or community housing provider and to specific sites. The site is not identified in the policy and the proposal is by a private provider. The policy therefore does not apply. The issues 19 The Statement of Issues before the Court contained 12 issues. A number of issues were resolved by the submission of further information, expert evidence or conditions. The remaining issues can be categorised into the following key issues:

i) Whether the objections under SEPP1 in relation to height and FSR are well founded. ii) Whether the removal of vegetation is acceptable (iii) Whether the proposal has an acceptable impact on the amenity of adjoining residences. (iv) Whether access to the proposal is acceptable

20 These issues were also raised by the objectors. The evidence 21 The following experts gave evidence: · For the council

Mr K Nash, town planner Mr M Lucchitti, architect Ms L Kilani, landscape assessment officer Mr I Drinnan, principal environmental scientist Mr Anderson, engineering assessment officer · For the applicant

Mr N Ingham, town planner Mr D Taylor, landscape architect Mr J Travers, ecological and bushfire consultant Mr G Pindar, traffic engineer 22 Mr J Gressieux, acoustic consultant, and Ms N Chadwick, aged care management consultant, provided Statements of Evidence on behalf of the applicant but were not required for cross examination. 23 The Court also had the advantage of a site visit and heard evidence from the following residents on site:

Mr P Camilleri, Darwin Place. Mr G Efrossynis, 7 Darwin Place. Mr G Jenkins, 22 Boyd Place. State Environmental Planning Policy No 1 Objection - Height 24 The objectives of the height limit in Clause 34(1) relevantly include:

(a) achieve consistency in the scale of buildings within each zone, and (d) ensure all buildings in a residential zone, other than the 2(c) Residential zone, maintain a maximum two-storey appearance 25 Clause 34(2)(d) of LEP 2000 specifies that the height limits for housing for older people or people with a disability are specified in SEPP 5. Clause 13 (2)(b) of SEPP 5 states:

If the development is proposed in a residential zone where residential flat buildings are not permitted: (a) the height of all buildings in the proposed development must be 8 metres or less, and (b) a building that is adjacent to a boundary of the site (being the site, not only of that particular development, but also of any other associated development to which this Policy applies) must be not more than 2 storeys in height. 26 The proposal complies with the 8 m control but is partly three storeys. Mr Ingham submitted a SEPP 1 objection which states that:

The proposal satisfies the intent of the development standards, as no part of the proposed building where it (is) close to a boundary, exceeds two storeys in height. The small area that is three storeys in height is well removed from the boundary. 27 I note that the SEPP 1 Objection does not specifically address the objectives of the height control in LEP 2000 but states that while there are no objectives for the height control articulated in SEPP 5 it is clear that the reason for the clause is to prevent SEPP 5 developments being constructed that exceed two storeys and adjoin dwelling houses that are one or two storeys. 28 Mr Lucchitti and Mr Nash held contrary opinions that the three storey component was not a small part of the building. Mr Nash estimated it to be approximately 250sqm. He stated that the boundary did not only relate to adjoining development but also to the boundary of site, which adjoins a street and that the three storey section could be clearly viewed from Darwin Place and the north west section of Bode Place. In Mr Lucchitti's opinion the height, depth and length of the building impact on the streetscape. 29 Mr Ingham considered the height and depth to be similar to other buildings in the locality and that the length of the building is broken down into elements. In particular, he did not consider that the building would appear as three storeys as it was two habitable floors over a parking level. The height does not exceed 8m and is similar to two storey dwellings in the area. 30 I accept council experts' opinion that the height of the building should be considered from the boundary to the public domain as well as to adjoining properties. The question is whether from the public domain the proposal will achieve consistency in the scale of buildings within the zone and maintain a maximum two-storey appearance. All parts of the building, including the three storey section, do not exceed the 8m height limit and therefore individually they are consistent with the height of other buildings in the area. The architectural treatment of the building has assisted in reducing its overall bulk and breaking down its scale. However, its size, particularly its continuos length, and the manner in which it steps up the slope results in a building which is not consistent with the bulk and scale of other buildings and would appear higher, particularly when viewed from Bode Place. This is largely a result of the FSR of the proposal rather than its height or that part of the building which is three storeys. State Environmental Planning Policy No 1 Objection - FSR 31 The objectives of the FSR control in cl 35(1) are:

(a) to provide a degree of consistency for existing residents as to the size and bulk of potential buildings in their neighbourhood, and (b) to allow buildings of sufficient scale to satisfy the needs of residents while preventing development of sites beyond community expectations and the environmental capacity of the zone. 32 Clause 35(2) specifies that the maximum FSR in the 2(a1) zone is 0.45:1. It was common ground that the proposal exceeds the maximum FSR but the experts disagreed as to the FSR of the proposal. Mr Nash estimated the FSR to be 0.88:1, whereas Mr Ingham estimated the FSR to be 0.75:1. The disagreement centred on whether parts of the building should be included as gross floor area based on the definition in LEP 2000, in particular whether storage should be included. It is not necessary for me to adjudicate on this difference of opinion as under both estimates the proposal exceeds the standard by some considerable amount. 33 Mr Ingham submitted a SEPP 1 objection, which concluded that the proposal met the objectives of the standard as residential care facilities require a higher FSR and are needed in the Sutherland Shire. The mass of the building is broken down so that it does not appear as a building of significantly different scale or bulk to other dwellings or buildings in the immediate vicinity. 34 Whereas Mr Nash did not consider that the proposal met the objectives of the FSR standard as it was not consistent with the size and bulk of buildings in the area, particularly its unbroken length and its height, and that the proposal was of a scale beyond community expectations. 35 Mr McEwen, for the applicant, submitted that the extent of variation made it difficult for the proposal to satisfy the underlying objectives of the standard but that this is not the only test, which is relevant to the determination of a SEPP 1 objection. Mr McEwen referred to the decision of Stein J in North Sydney Council v Parlby (Unreported 13 November 1986) where His Honour states:

In my opinion there is no justification for the conclusion that the test under SEPP 1 is to ascertain whether the underlying objective or purpose of the standard is met by the particular development. It is but one approach, and the Court has made it plain on occasions that it is only one.

More recently in North Shore Gas Co. v North Sydney Municipal Council (Unreported 15 September 1986) I held that compliance with a development standard was unnecessary and unreasonable for the reason, inter alia, that the standard had been virtually abandoned or destroyed by Council. Its underlying purpose had been eroded. 36 In Mr McEwen's submission the FSR of 0.45:1 as a standard for residential care facilities is inappropriate and council's policy is that a FSR of 0.75:1 is appropriate for this type of development. On this basis the standard in the LEP had been abandoned or destroyed by the actions of council. Therefore the test was not whether the development met the objectives of the standard as the underlying purpose had been eroded. 37 Mr McEwen based this submission on the evidence that: · The standard in SEPP 5 for residential care facility is 0.75:1. A development which complies with this standard cannot be refused on this basis. This FSR is greater than the 0.5:1 FSR which is permitted for self care dwellings under SEPP 5. · An FSR of 0.75:1 is necessary to meet the Commonwealth Government Standards for residential care facilities, which require personal space and additional area in ancillary facilities to support each resident. · An FSR greater than that which is permissible in the zone is necessary to provide an incentive for the provision of residential care facilities over housing development. · Council resolved on 15 March 2004 to amend the LEP and to adopt as an interim policy a FSR of 0.75:1 for residential care facilities in the low density residential zone. The draft LEP reflects this change. A letter from the council to residents dated 11 August in relation to the Draft DCP refers to this change. 38 Mr O'Gorman Hughes submission, for the council, was that while the draft LEP includes the FSR amendment, the site is proposed to be zoned Environmental Housing (Bushland) which does not permit housing for older people or people with a disability. Moreover, the Draft DCP does not reflect the higher FSR but retains an FSR of 0.45:1 in the 2(a1) residential zone. The policy framework does not indicate an abandonment of the standard in LEP 2000 and the proper approach to be taken in considering an objection under SEPP 1 is that stated by Lloyd J in Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46. Mr O'Gorman Hughes submitted that the development standard has a purpose, that its underlying objectives are required to be met and that the proposal does not meet these objectives. 39 I accept that there is a strong policy argument that the FSR for residential care facilities needs to be greater and that Council's strategic planning is moving in this direction. However, there is a conflict between this and the objectives of the standard and for the zone in both LEP 2000 and the draft LEP. While this may demonstrate an inconsistency in policy I do not accept that it demonstrates an abandonment of the standard. The situation is no different to an application where the planning framework is under review, through the preparation of a draft LEP. 40 This appeal is different to the situation described by Mr McEwen where the council had approved a number of buildings that exceeded the height limit such as to warrant the height limit as meaningless. In this appeal there are no examples of private residential care facilities being either lodged, approved or constructed. The only evidence of abandonment of the standard is a change in policy intent. I do not accept that this constitutes abandonment or that the underlying objectives of the control are irrelevant. 41 The change in policy intent is also contradictory as the draft DCP retains the FSR for residential care facilities as 0.45:1 while the draft LEP increases the FSR to 0.75:1 in certain zones. This includes the Local Housing zone where the FSR for all other development remains 0.45:1. The draft LEP retains a requirement that the objectives of the zone must be met. The objectives of the Local Housing zone clearly relate to low density residential development. While residential care facilities can have domestic features the proposed FSR and functional requirements would make it difficult to meet the objectives for the zone in the draft LEP. The draft LEP proposes a maximum height for aged care facilities equal to the maximum height of other residential development permissible in the zone, except in the Local Housing Zone where it is limited to single storey. It is questionable whether a FSR of 0.75:1 can be achieved in a single storey form. 42 The contradiction between the draft DCP and the draft LEP can be explained with reference to the report to the council meeting of 21 June 2004 which states that the draft DCP is made in response to the gazettal of State Environmental Planning Policy (Seniors Living) and that:

The DCP should contain appropriate development standards until SSDLEP 2004 comes into effect. The draft DCP can incorporate most of the requirements of SSDLEP 2004 and the Seniors Living Policy ……

However, it is not possible to incorporate all the controls within SSDLEP 2004 into a DCP, essentially because some are dependent upon the provisions of the SSDLEP 2004 itself. 43 In relation to FSR the report states that:

SSDLEP 2004 allows residential care facilities at a higher FSR than self care dwellings. This is also the case under Seniors Living Policy, although it allows a FSR of 0.5:1 for self care dwellings and 1:1 for residential care facilities. FSR are statutory controls and therefore cannot be amended by a DCP. Accordingly the Draft DCP must reflect the FSR controls of SSLEP 2000. 44 Mr McEwen's submission was that the letter of 11 August 2004 advising people of the exhibition of the Draft DCP was a clear indication of the change in council's policy on the FSR for residential care facilities as it states that:

In recognition of the difficulty in achieving residential controls when developing hostels and residential care facilities, council resolved on 15 March 2004 to include a floor space ratio limit of 0.75:1 for hostels and residential care facilities in the low density residential zone. The floor space ratio limit requires a local environmental plan and is part of Sutherland Shire Draft Local Environmental Plan 2004. 45 I do not accept this submission as while the letter is ambiguous I understand its purpose to be providing information about the exhibition of the Draft DCP and that changes to FSR would require an LEP amendment. I do not interpret this a being an indication of abandonment of the current control but a resolution to amend the control that would be subject to the normal LEP process. 46 Mr McEwen also made reference to the wording of the council resolution that "In the interim Council adopt a 0.75:1 FSR for hostels and aged care facilities". This part of the resolution was not referred to in the letter and Mr Luchitti stated that he was unaware of any interim policy and that in any event it would not be feasible to implement such a policy as it contradicts the standard in LEP 2000. 47 The draft LEP proposes to zone the land Environmental Housing (Bushland). Under this zone the proposal would be prohibited. Mr Ingham was of the opinion that the Environmental Housing (Bushland) zone was inappropriate for this site as it did not meet the criteria for this zone in that the construction of the Bangor Bypass meant that it was not a high bush fire risk area. 48 Further Mr Ingham considered the appropriate zoning to be Local Housing, which permitted residential care facilities and an FSR of 0.75:1. He supported his opinion by reference to a recommendation from council staff that the area be rezoned to local housing. However, council did not adopt this recommendation.

49 Mr McEwen's submission was that little weight should be given to the draft LEP as it was neither imminent nor certain. He stated that the site was unlikely to be zoned Environmental Housing (Bushland) as it was not based on any sound planning rationale and that the Minister, in considering submissions, would not gazette the LEP with this zoning. He also referred to letters from the Department of Infrastructure, Planning and Natural Resources (DIPNR), which stated that the issue of residential care facilities and council's exemption from SEPP 5 and Seniors Living Policy would be part of a detailed assessment of the draft LEP. 50 Mr O'Gorman Hughes made the contrary submission that the Draft LEP was imminent and certain based on DIPNR's response of 4 June 2004 to the submission of the Draft LEP under s68 of the EPA Act and the decision of Pain J in Novara Crescent Pty Ltd v Sutherland Shire Council [2004] NSWLEC 403 where her Honour gave significant weight to the draft LEP. 51 I accept Mr McEwen's submission that the draft LEP is neither imminent nor certain and that it should be given little weight. The decision of Pain J was made without the benefit of the DIPNR's letter of 4 June 2004 or the further letters. These clearly indicate that there are a number of issues that need to be addressed before the LEP can be gazetted. This is consistent with the decision of Watts C in Stewart Ross Stevens v Sutherland Shire Council [2004] NSWLEC 405 where at par 61 he states that "SSLEP 2004 is neither certain and imminent and I have given it little weight". 52 In accepting Mr McEwen's submission in relation to the Draft LEP, I reject his submission on the abandonment of the FSR standard. In the absence of any examples where private residential care facilities have been approved or built with a greater FSR the only indication of council's policy intentions is the Draft LEP to which I have given little weight. As stated above there are contradictions inherent in the policy direction for residential care facilities articulated in the draft LEP, particularly the objectives of the Local Housing Zone, the proposed FSR and the single storey height limit. The overlay of these controls appears unworkable. While I accept that the controls relating to residential care facilities require review the ability to achieve the competing objectives of providing sufficient development potential for residential care facilities while fitting into a low density residential zone needs further consideration. 53 In determining the SEPP 1 objection I find that the standard has not been abandoned nor has its underlying purpose become irrelevant. However, there is conflict in achieving the objectives and providing residential care facilities that should be addressed through the plan making processes set out in Part 3 of the Act. I find that the variation from the standard does not satisfy its underlying objectives and the SEPP1 objection is not well founded. On this basis the application must fail. Removal of trees 54 In relation to the removal of the trees from the site the key considerations are whether the retention and enhancement of existing vegetation has been adequately addressed (cl 30(e)) and whether the proposed development will have a significant adverse affect on rare and endangered flora, fauna and habitat (cl 32(a)) and the protection of bushland vegetation of scenic value (cl 32(d)). 55 In relation to the first consideration the parties agreed that of the 15 trees on the site all the mature trees were to be removed with one juvenile tree being retained. They agreed that some of these trees were significant and worthy of retention. They disagreed on whether this was acceptable. Ms Kilani's opinion was that on a site of this size it should be feasible to retain some of the existing mature trees and that replacement planting did not adequately compensate for the loss of exiting vegetation. Mr Drinnan shared this view. In particular he considered the removal of all of the mature Eucalyptus glyboidia trees and replacement with juvenile specimens to be unacceptable due to the time that it would take for the replacement trees to reach the height and spread of the existing trees which he estimated to be 20 years for the height and 30-40 years for the spread. 56 Mr Taylor held the contrary view. He recognised that it would be desirable to retain some of the existing trees but considered that the replacement trees and other landscaping would more than compensate for their removal. In particular he considered that the regeneration of bushland on the northern boundary of this site would reinstate the periphery of the site and that this area contains some saplings that would be supplemented by endemic species. 57 I find that the retention and enhancement of existing vegetation has not been adequately addressed. While there has been adequate documentation I do not accept that the requirement of this clause is merely that the matter be addressed by the submission of documentation but that this documentation be evaluated and that the removal of significant trees requires justification. I do not accept that compensatory planting is justification for removal of existing trees and I accept that on a site of this size it is not an unreasonable expectation that some existing trees would be retained. I acknowledge that this is difficult to achieve with the bulk, functional requirements for a continuous building and resultant site coverage of the current proposal. However, as stated above a building of this bulk and scale is not envisaged by the FSR control for the zone. 58 As I have already found that the removal of all the mature trees is not justified it is not necessary for me to adjudicate on the second issue of whether the Eucalyptus glyboidia as part of remnant Shale Sandstone Transition Forest are rare or endangered flora that provide a habitat for fauna. Impact on residential amenity 59 The key area of disagreement between Mr Nash and Mr Ingham was whether the proposal would have an acceptable impact on solar access enjoyed by the adjoining property to the east, 22 Boyd Place. The experts held different opinions on the extent of overshadowing that would occur but both agreed that it would comply with the requirements of Amcord. Despite this compliance, Mr Nash found the overshadowing impact to be unacceptable as it could be improved by a greater setback that could be achieved by a development that complied with the FSR standard. 60 I do not accept that the proposal will have an unacceptable impact. The rooms which face west are bedrooms or bathrooms and the setback that is proposed is greater than that which would be required for a house. The overshadowing impact is not greater than that which would result from a two storey house and is consistent with what is contemplated by the controls. 61 Privacy was also raised as an issue, but Mr Nash and Mr Ingham found this impact to be acceptable. Access 62 Access issues to the site are twofold. The first issue relates to the uncertain future of Barden Road once the Bypass is opened. In particular, the concern that council may be responsible for the ongoing maintenance of the western section of Bardon Road which may only provide access to the site. The issue was resolved through the parties agreement to a condition. 63 The second issue relates to the inability of service and delivery vehicles to access the basement of the building due to the reduced clearance. Mr Anderson was concerned that these vehicles would service the site from Darwin Place. The resident's were concerned about these vehicles and emergency vehicles using Darwin Place and the disturbance and safety impacts of such an arrangement. 64 While I do not consider this to be an unacceptable arrangement due to the volume of traffic that is likely to be generated I accept that it would be preferable if all access were from Bardon Road. Orders 65 For the above reasons the Orders of the Court are:

1. The appeal is dismissed. 2. The development application (03/0873) to construct an aged care facility at lots 4,5,6 and 7 DP 850738, known as 19-23 Darwin Place and 20 Boyd Place, Barden Ridge is determined by refusal. 3. The exhibits may be returned.

      Annelise Tuor
      Commissioner of Court

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